Supreme Court Agrees to Hear Challenge to Its Jurisdiction in National Anthem Case

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An intervener in the case has argued that decisions like making the singing of the national anthem compulsory should rest with parliament and not the judiciary.

The court has also agreed to hear the petitioner on making singing ‘Vande Mataram’ compulsory in school. Credit: T. A Joseph/Flickr CC BY-NC 2.0

The ongoing national anthem case in the Supreme Court has taken a new twist, with an intervener challenging the very jurisdiction of the court to make its singing mandatory. It has said that the court has no such powers under the doctrine of separation of powers.

The intervener, Kodungallur Film Society, Kerala, affirmed its respect for singing the national anthem, but in its application, challenged the basis of the court’s November 30, 2016 interim order. The interim order made it mandatory to play the anthem in all cinema halls at the start of every film show and compelled everyone present to stand up and show respect.

On Tuesday, the government counsel in the Supreme Court competed with that of the petitioner in the national anthem case to question the credentials of those who challenged the Supreme Court’s very jurisdiction to hear and pass directions in the case.

“National pride is non-negotiable,” observed additional solicitor-general Tushar Mehta, adding that he regretted that the petitioner had to approach the court to seek its directions to make singing of national anthem in cinema theatres mandatory, even though it should have been considered a duty by all. Mehta filed two interlocutory applications for impleadment on behalf of Maharashtra and Rajasthan.

The transformation of the government counsel from “merely recommending that national anthem has to be respected” when the court issued its interim order on November 30 last year to the its staunch defence today was gradual but emblematic of the prevailing climate of opinion outside the court.

The occasion for hearing of the case today was the petitioner’s prayer to amend his writ petition and seek directions to the government to amend the Prevention of Insults to National Honour Act, 1971, to make the offence of insulting the national anthem a penal offence.

The court was also hearing another petition by Delhi BJP spokesperson and advocate Ashwini Upadhyay to make singing the national anthem mandatory in all public offices, including courts and legislatures. Upadhyay’s other plea is to make the singing of ‘Vande Mataram’ mandatory in all schools in the country.

The bench, comprising Justices Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudar, allowed the petitioner, Shyam Narayan Chouksey, to so amend his petition within two weeks and asked the Centre to respond to both petitions within four weeks.

The petitioner’s counsel, senior advocate Rakesh Dwivedi, resisted the intervener in the case, Kodungallur Film Society, Kerala, which sought the recall of the November 30, 2016 order of the court.

Senior advocate Chander Uday Singh, who appeared for the intervener, told the court that Dwivedi’s and Mehta’s submissions bordered on calling those who opposed compulsion in singing the national anthem ‘anti-nationals’. Mehta immediately sought to correct him saying he didn’t use the word ‘anti-national’.

Singh told the court, “We have the highest respect for the national anthem. But we don’t agree that the order passed by this court is beyond scrutiny, as this court itself has acknowledged earlier that this issue needs to be debated. The issue is whether speech can be compelled under Article 19(1)(a) of the constitution. To insist that the national anthem must be played at a particular time amounts to compulsion. Let us not get carried away by the rhetoric that nobody could question the order.”

At this point, Dwivedi drew attention to Article 19(2), which envisages restrictions that can be imposed on free speech in the interest of national integrity.

Justice Khanwilkar drew attention to sub-clause (a) of Article 51-A, dealing with fundamental duties, according to which it shall be the duty of every citizen of India to abide by the constitution and respect its ideals and institutions, the national flag and the national anthem. “[There is] no need to have special dispensation for this,” he said.

In response, Singh told the bench, “This PIL is not maintainable. The petitioner has to make this plea to parliament and not to this court. People go to cinema halls for entertainment. We want to address this. We are only [debating] on whether the Supreme Court can issue a mandamus like this. We [India] follow[s] separation of powers. Parliament has a role assigned to it. The Supreme Court can’t assume the role of the legislature.”

Later, the bench heard senior counsel Raju Ramachandran, who represented the National Platform for the Rights of the Disabled (NPRD), submit that the Supreme Court’s interim order in the case is not consistent with the dignity of persons with disabilities.

The bench agreed to extend its exemption from the purview of its November 30 and December 9, 2016 orders to more categories of persons with disabilities, as suggested by the NPRD. Thus, the bench modified its orders to direct that persons who are wheelchair users, those with autism, suffering from cerebral palsy, multiple disabilities, Parkinsons, multiple sclerosis, leprosy cured, muscular dystrophy, deaf and blind “be treated not to be within the ambit of the orders passed by this court”.

Among the categories that the bench left out in its order are intellectual disabilities and mental illnesses. The bench, however, added that the Centre may consider exempting them.

The bench agreed to hear the application for the recall of its November 30, 2016 interim order, along with Chouksey’s writ petition, when it is finally heard. The case is next listed for August 23.

By choosing to hear the application questioning its jurisdiction to hear the national anthem case along with the writ petition, the Supreme Court might have displayed its willingness to debate the issue with an open mind.

But many would find its interim order and its decision to consider extending it beyond cinema halls and making the singing of ‘Vande Mataram’ mandatory in schools inconsistent with that openness.

Besides, the hasty manner in which the Supreme Court issued the interim order on November 30 last year, without hearing all the stakeholders (state governments and persons with disabilities, among others) raised doubts on whether the court had made up its mind about the merits of the petition already on the second day of hearing the case, and assumed the role of parens patriae without any justification and reasoning.

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